CACV 17/2022
[2022] HKCA 561
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 17 OF 2022
(ON APPEAL FROM HCAL 493 OF 2019)
________________
| BETWEEN | | |
| | ATHALAGE PRASAD SUSANTHA PERERA | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________
Before: Hon Chow JA and Wong J in Court
Date of Judgment: 17 May 2022
________________
J U D G M E N T
________________
Hon Wong J (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge KW Lung (“the Judge”) on 24 December 2021refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 21 December 2018. The Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 19 August 2016 and 12 July 2017.
BACKGROUND
2. The Applicant is a national of Sri Lanka. He came to Hong Kong illegally and was arrested by the police on 3 August 2008. He lodged a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”), which was later treated as a non-refoulement claim under the unified screening mechanism on 3 March 2014. He claimed that, if refouled he would be harmed or killed by two individuals, namely Ajith Aiya and Lal, because these people believed that he had leaked information regarding their involvement in a murder case. Details of the Applicant’s claim were summarised by the Judge at paragraphs 2 ‑ 4 of the Form CALL‑1.
3. By a Notice of Decision dated 19 August 2016, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: torture risk[1], BOR 3 risk[2], and persecution risk[3]. By a Notice of Further Decision dated 12 July 2017, the Director further dismissed the Applicant’s non-refoulement claim based on BOR 2 risk[4].
4. The Applicant appealed against the Director’s decisions. He was legally represented before the Board on 22 August 2018 and 3 October 2018. On 21 December 2018.The Board dismissed the Applicant’s appeal and confirmed both the Director’s decision and his further decision (“the Board’s Decision”).
5. The Board found that on the whole the Applicant was not telling the truth (see Board’s Decision at paragraph 37) and that his evidence regarding the two men mentioned above was vague and unbelievable. The Board also rejected his evidence of threats by them. Even assuming the claimed threats were true, the Board found that the low intensity and frequency of past ill‑treatment by these persons was indicative of a small future risk of harm upon the Applicant’s return to Sri Lanka (see the Board’s Decision at paragraph 41).
THE JUDGE’S DECISION
6. On 20 February 2019, the Applicant filed his Form 86 against the Board’s Decision. In his affirmation in support of his application, he alleged that the Board’s Decision was unreasonable or irrational and the adjudicator was in breach of procedural fairness because:
(1) he had unlawfully fettered his discretion by refusing his appeal;
(2) he acted in an unfair manner; and
(3) he did not meet the greater care and duty owed to a self-represented claimant.
7. The Applicant also stated that the hearing bundle was given to him six days before the appeal hearing, with an intervening weekend, and as a result he did not have sufficient time to prepare for the appeal hearing in particular as the documents were in English and he was unrepresented. He also said he was confused at the hearing. He complained that the adjudicator had relied upon hearsay evidence and outdated cases and his decision was speculative (see paragraph 10 of the Form CALL-1).
8. The Judge found that the Applicant’s grounds in support of his application did not assist his case as they were irrelevant. The Judge pointed out that the Applicant was wrong to say that he was legally unrepresented, as it could be seen from the Board’s Decision that he was legally represented by a duty lawyer. The Judge also noted that the lawyer of the Applicant had not complained to the Board that he did not have sufficient time to prepare his case because of the late delivery of the hearing bundle. The Judge further noted that the lawyer should have submitted all the appropriate materials or cases in support of his appeal. The Judge found all other grounds raised by the Applicant were simply his opinions or comments without supporting evidence (see paragraph 14 of the Form CALL-1).
9. Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s leave application.
THIS APPEAL
10. In his Notice of Appeal dated 7 January 2022, the Applicant stated as his grounds of appeal that he still faced a risk to his life from his enemies. He also complained that there was an error in the Judge’s decision at paragraph 6 as he was not from Pakistan and he had never mentioned going to Pakistan.
11. The Applicant filed two written submissions. In his first submission which is dated 22 February 2022, the Applicant stressed that his life is still in risk. In the second submission which is dated 28 March 2022, he explained that he would not have any supporting documents to submit because he could not afford to obtain them from his country and his family members have been avoiding him because of the trouble he has caused.
12. The Applicant arrived more than one hour late for the hearing of this appeal on 19 April 2022. Having been advised that the interpreter was no longer available, the applicant agreed to the appeal being disposed of on paper without an oral hearing. In the circumstances, we consider this appeal on the basis of the materials provided in his Notice of Appeal and the two written submissions.
DISCUSSION
13. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
14. As for the complaint that the Judge stated erroneously that he was a Pakistani, the Judge was, in the paragraph in question, reciting the decisions of the Director and it was clearly an inadvertent error on the part of the Judge. From the whole of the content in the Form CALL-1, we are satisfied that the Judge was aware that the Applicant is a citizen of Sri Lanka and had considered the case in that light.
15. The other ground raised by the Applicant concerns assessment of evidence, risk of harm, state protection and (if relevant) viability of internal relocation as well as consideration of COI material. These are all primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022.
16. The Applicant has not raised in his Notice of Appeal or written submissions any viable grounds of appeal against the Judge’s decision dated 24 December 2021. We do not find any error in the decision of the Judge.
17. The Applicant’s appeal has no merits, and his appeal is dismissed.
(Anderson Chow)
Justice of Appeal | (Albert Wong)
Judge of the Court of
First Instance |
The Applicant, unrepresented.
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.